Next Monday, the courtroom battle between Apple and Samsung will hit full steam and, based on the pre-trial activity between the two companies, it's not going to be pretty. It appears both sides, despite doing massive amounts of business together in the components industry, are not going to pull any punches. It also appears, however, that the scales of justice are weighing in Apple's favor already, and Samsung has adopted a defensive position even before the gavel falls.
Anything can happen in a jury trial, but could things have gone much better for Cupertino up to this point? Join us for another week of Law & Apple.
Every week we write about how it was not a good week for Samsung with regard to this trial, and this past week has been no exception. Last Thursday, the United States Court of Appeals for the Federal Circuit denied Samsung's request to lift the injunction against the Galaxy 10.1. This device is no longer the most important horse in the Samsung stable of products, but as Florian Mueller of FOSS Patents puts it, "The Federal Circuit would have stayed the injunction if it believed in Samsung's chances of prevailing at trial."
Also last week, Judge Koh ruled on the pre-trial motions submitted by Apple and Samsung. The decisions were fairly even, with both companies being granted some requests and denied others, but one important win for Apple overshadowed the rest: Samsung will not be able to include any evidence regarding Walter Isaacson's Steve Jobs biography, particularly the quotes on "thermonuclear war" against Android. Samsung would have loved to paint a picture for the jury that this case was part of a mean-spirited, personal vendetta against their company, but Judge Koh was very specific that this case would not be about Steve Jobs.
Then yesterday, Apple unveiled the size of the check it was seeking from Samsung: a cool $2.5 billion. Actually, it is $2.525 billion, but why split hairs? The amount is based on claims of how much Samsung gained by allegedly using Apple intellectual property, and how much Cupertino has lost in the marketplace because of it. And that number is just a starting point; significant portions of it could triple, based on the way the jury interprets this case.
I've got a bad feeling about this.
As if all of that is not challenging enough for Samsung, perhaps the worst blow was dealt yesterday by Magistrate Judge Paul S. Grewal. In ruling on jury instructions, Judge Grewal concluded that Samsung purposefully failed to preserve evidence, and the jury can assume that the evidence that was "lost" would have been favorable to Apple. This is a devasting blow to Samsung, as it calls into question its credibility and honesty. The jury will be permitted to weight this development as much as they want, or not at all, but Samsung will not be able to argue that destroying the evidence was accidental.
As we've stated, anything can happen in a jury trial, but telling the jury at the onset that Samsung is, by point of law, trying to hide stuff, definitely puts Apple in the driver's seat.
Adrian writes the weekly Law & Apple column and the occasional feature story for MacLife.com. Follow him on Twitter, or subscribe to him on Facebook.
